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Under SB649, prosecutors would be able to charge "simple possession" of cocaine or heroin as a misdemeanor instead of a felony.
The California State Assembly on Wednesday approved legislation that would give local prosecutors the discretion to charge thousands of non-violent drug defendants with misdemeanors instead of felonies. The State Senate already approved the bill, which now goes to Governor Jerry Brown for his signature or veto.
“We give non-violent drug offenders long terms, offer them no treatment while they’re incarcerated, and then release them back into the community with few job prospects,” said the bill’s author, Sen. Mark Leno (D-San Francisco). Leno noted felons have a much harder time getting a job than someone convicted of a misdemeanor.
Under SB649, prosecutors could charge someone accused of “simple possession” of cocaine or heroin with a misdemeanor, punishable by up to a year in county jail. Currently, “simple possession” – or possession for personal use – is automatically a felony punishable by up to three years in jail. Leno said it doesn’t make sense.
“We know we can reduce crime by offering low-level offenders rehabilitation,” Leno said. Supporters of the bill noted the federal Affordable Care Act makes more money available for drug treatment – but only to people who are not in jail.
“We can begin to divert those offenders into a federally paid drug treatment program that will begin to address the underlying reasons for their addiction,” said Kim Horiuchi, an attorney with the American Civil Liberties Union, one of the bill’s biggest backers.
The California District Attorneys Association opposed the legislation, which also gives judges more discretion in drug cases.
“It gives the court the discretion to take a crime a prosecutor has charged as a felony, and convert it to a misdemeanor over the prosecutor’s wishes,” said Cory Salzillo, director of legislation at the association.
California law already allows prosecutors to charge “simple possession” of methamphetamine as a misdemeanor or felony. The legal community calls this type of offense a “wobbler.” Supporters of SB649 say its only fair that cocaine and heroin possession be “wobblers” too. Salzillo disagrees.
“If the proponents’ goal is equalizing penalties…the response should be to increase the penalty for possessing methamphetamine,” he said. The prosecutors' association also takes the position that more jail time serves as a deterrent for drug addicts.
Not all prosecutors agree. A spokeswoman for Los Angeles County District Attorney Jackie Lacey said she has taken no position on the bill. Thirteen states, the District of Columbia and the federal government treat drug possession as a misdemeanor, according to the ACLU.
Gov. Brown has yet to say whether he supports the bill, which would have no impact on state prisons. Under prison realignment, people convicted of felony possession serve their time in county jails.
If Brown signs the bill, data shows that prosecutors likely would exercise their discretion differently across the state. In methamphetamine possession cases, where they already have discretion, charges vary widely, according to the Stanford University Public Policy Practicum.
In San Francisco and San Luis Obispo Counties, nearly half the defendants were charged as misdemeanors. In more conservative Orange and Kern Counties, almost none were charged as misdemeanors. Los Angeles prosecutors charged about a third of methamphetamine possession cases as misdemeanors. The statewide average was 18 percent.